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11/07/88 the People of the State of v. Timothy Cummings

November 7, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TIMOTHY CUMMINGS, DEFENDANT-APPELLANT

2. UNDER THE INFLUENCE OF ALCOHOL." ILL. RE

v.

STAT. 1987, CH. 95 1/2, PARS. 11-501(A)(1), (A)(2).



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

530 N.E.2d 672, 176 Ill. App. 3d 293, 125 Ill. Dec. 514 1988.IL.1626

Appeal from the Circuit Court of Will County; the Hon. Vincent Cerri, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. STOUDER, P.J., and BARRY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The trial court convicted the defendant, Timothy Cummings, of driving under the influence of alcohol, driving with a breath-alcohol content greater than 0.10, and driving while his license was revoked. (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 11-501(a)(2), 11-501(a)(1), 6-303(a).) The court sentenced the defendant to 75 days in a work-release program. The defendant appeals.

The record shows that on May 16, 1986, University Park police officer B. Cronin found the defendant's car in a ditch. Officer Cronin testified that the defendant was slumped over the steering wheel, passed out. After turning off the car's engine, Cronin woke the defendant. Officer Cronin noted that the defendant had trouble standing, walking and responding to questions. From her experience as a police officer, she believed he was intoxicated. An intoxilyzer subsequently revealed that the defendant had a breath-alcohol content of 0.13.

On cross-examination, Officer Cronin acknowledged that in her report of the incident she had not stated that the car's engine was running, only that the keys were in the vehicle. Cronin further noted that when she found it, the car was not driveable and had to be towed away.

The defendant testified that when Officer Cronin found him in his car, he was lying on the front seat, asleep and with his car keys in his pocket. He denied drinking any alcohol prior to driving into the ditch. Only after he realized that he was stuck did he drink two cans of beer he had in the backseat. He later learned that his car had a broken tie rod.

On appeal, the defendant first argues that he was not proved guilty beyond a reasonable doubt of driving while under the influence of alcohol.

Section 11 -- 501 of the Illinois Vehicle Code (the Code) provides in relevant part:

"(a) A person shall not drive or be in actual physical control of any vehicle within this State while:

1. The alcohol concentration in such person's blood or breath is 0.10 or more . . .; [or]

In support of his argument, the defendant contends that there was no evidence that he was intoxicated before his car went into the ditch. He cites several cases in which the defendants were in car accidents and were later arrested when they returned to their cars drunk. In each case, the court found that the State had failed to prove that the defendant was intoxicated at the time he drove his car. (See People v. Flores (1976), 41 Ill. App. 3d 96, 353 N.E.2d 131.) In those cases, however, the defendants clearly were not in actual physical control of their cars when they were arrested. Accordingly, ...


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